Decision #25/14 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board (WCB") to suspend his wage loss benefits when he was unable to undergo surgery for his elbow condition. A hearing was held via teleconference on November 13, 2013 to consider the matter.Issue
Whether or not the worker's wage loss benefits should be suspended effective March 26, 2013.Decision
That the worker's wage loss benefits should be suspended effective March 26, 2013; and
That the worker's wage loss benefits be reinstated effective June 10, 2013, the date he saw his family physician to discuss scheduling a new surgery date. Ongoing wage loss benefits are subject to the worker's full participation in preparation for and attendance at his next surgery date.
Decision: Unanimous
Background
On August 4, 2011, the worker suffered an injury to his left elbow during the course of his employment as a skidder operator. His claim for compensation was accepted and various types of compensation benefits were paid to the worker. The compensable diagnosis was a left ulnar neuropathy.
File records showed that the worker was scheduled to undergo surgery related to his compensable left elbow condition on August 31, 2012. On September 6, 2012, the worker advised the WCB that he missed his elbow surgery as his escort had an emergency and that the surgeon would not perform the surgery without an escort. The worker also claimed that he had a cold and that the surgery would not have been done on that basis. On September 6, 2012, the WCB advised the worker that his compensation benefits could be suspended in the future if it was determined that he failed to mitigate the consequences of the accident as set out under Section 22 of The Workers Compensation Act (the "Act") and Policy 44.10.30.60, Practices Delaying Workers' Recovery.
A new surgery date was scheduled for the worker's elbow condition on March 26, 2013.
On March 27, 2013, the treating surgeon wrote the WCB noting that the worker was first booked for his cubital tunnel release and medial epicondylitis debridement on August 31, 2012. At that appointment, the worker showed up without n.p.o. (nothing by mouth) status having had a large breakfast. He also stated that he did not have a ride home and was not fit for anaesthesia. The worker was then rebooked for surgery on March 26, 2013. The worker showed up once again having eaten a large breakfast and decided that he did not want the surgery. A message was then left for his friend on the voicemail stating that n.p.o. status was mandatory and the worker seemed to understand.
On March 27, 2013, a WCB case manager advised the worker that she was suspending his wage loss benefits effective March 25, 2013 as he declined to undergo surgery. Section 22 of The Workers Compensation Act (the "Act") and WCB policy 44.10.30.60, Practices Delaying Worker's Recovery was referred to in the decision. On April 10, 2013, the worker appealed the decision to Review Office.
On May 27, 2013, Review Office determined that the worker's wage loss benefits were correctly suspended effective March 26, 2013 in accordance with subsection 22(1) and 22(2) of the Act. Review Office noted that the case manager reminded the worker on March 13, 2013 of the consequences of a second cancelled surgery for non co-operation. Despite being aware that he could not eat breakfast, the worker presented for his March 26, 2013 surgery having consumed a large breakfast. Review Office stated that the pre-surgery instructions submitted by the worker in his appeal clearly state that he was not to consume food or drink from midnight the day prior to the surgery. On June 25, 2013, the worker appealed Review Office's decision to the Appeal Commission and an oral hearing was held on November 13, 2012.
Following the hearing, the appeal panel met to discuss the case and requested a report from the worker's treating physician. The physician's report dated February 20, 2014 was later received and was forwarded to the worker for comment. On March 7, 2014, the panel met further to discuss the case and rendered its decision.
Reasons
Applicable Legislation and Policy
The worker is appealing the suspension of his wage loss benefits effective March 26, 2013.
In addressing this appeal, the Appeal Commission is bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.
Under subsection 4(2) of the Act, a worker who is injured in an accident (as defined under the Act) is entitled to wage loss benefits for the loss of earning capacity resulting from the accident. Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such a time as the worker’s loss of earning capacity ends.
Section 22 of the Act has been applied by the WCB in this case. It addresses the worker’s responsibility to mitigate the consequences of an accident. It provides, in part, as follows:
Section 22 of the Act provides:
22(1) Every worker must
(a) take all reasonable steps to reduce or eliminate any impairment or loss of earnings resulting from an injury;
(b) seek out, co-operate in and receive medical aid that, in the opinion of the board, promotes the worker’s recovery; …
22(2) If a worker fails to comply with subsection (1), the board may reduce or suspend the compensation payable to the worker.
The issue of suspension of wage loss benefits is also addressed in Board Policy 44.10.30.60 – Practices Delaying Worker’s Recovery. It states, in part:
Injurious Practices
2. In order to maintain eligibility for compensation benefits a worker is required to:
a) Undergo reasonably essential, acceptable, and established medical, surgical, or therapy interventions if the WCB believes that the loss of earning capacity or degree of impairment would be lessened as a result.
…
c) Regularly attend appointments that are part of the plan for physical, medical, psychological, or vocational rehabilitation …
Consequences of a Worker’s Failure to Mitigate
1. If a worker fails to submit to appropriate treatment or submits to treatment against the advice of the WCB, the WCB will pay benefits only to the extent, if any, that it deems would have been due to the worker had the worker undergone the recommended intervention or not submitted to the inappropriate treatment.
Worker's Position
The worker was self-represented. He participated in the appeal by telephone.
The worker described his duties at the time of the injury. He said he was a skidder in a logging operation. While entering the cab of the skidder, the worker slipped but avoided falling by grabbing onto the cab with his left arm. He felt pain in his left arm which was ultimately diagnosed as a left ulnar neuropathy.
The worker acknowledged that his first surgery, scheduled for August 31, 2012, was cancelled. He said that at the last minute his escort was not able to pick him up and that as a result the surgery was cancelled by the clinic. He denied he had eaten breakfast that morning and that the surgery was also cancelled because of this. He said he had a bad cold and that he thought this played a factor in the decision to cancel.
Regarding his attendance for surgery on March 26, 2013, the worker acknowledged that he had received the Instructions for Day Surgery Patients. He said that he read them before leaving for Winnipeg. He noted that some sections were highlighted with pink highlighter. He said the Diet section, which includes the direction to not eat, was not highlighted. Because he is diabetic and was feeling light-headed, he decided to eat prior to attending for surgery. He said that he did not understand that he was not to eat. He asked a friend who recently had surgery and the friend told him it was OK to eat because he is diabetic. The worker said that he followed the highlighted portions of the instructions and feels the clinic is responsible for the cancellation as it did not highlight the Diet section.
The worker advised that when he arrived at the clinic for the surgery, he spoke briefly with the surgeon who examined his arm and marked it. He did not see the surgeon again and did not talk to the surgeon about the cancellation. The worker said that the intra-venous line was attached by nurses and he was being questioned by the anesthetist when he was asked about eating breakfast. He told the anesthetist that he had eaten breakfast. The anesthetist proposed the surgery proceed with a local anesthetic. The worker said the anesthetist left to talk to the surgeon and returned to advise that the surgery would not proceed.
The worker advised that he is not able to work. He tried fishing but this requires the use of both hands and he is not able to use his left hand. He asked that wage loss benefits be re-instated.
Employer's Position
The employer did not participate in the hearing.
Analysis
The issue before the panel is whether the worker's wage loss benefits should be suspended effective March 26, 2013. For the worker's appeal to be successful, the panel must find that the worker did not fail to take all reasonable steps to reduce or eliminate the impairment from his workplace injury and cooperated in receiving medical aid.
The panel was not able to make this finding. The panel finds that the worker's conduct resulted in the cancellation of two surgeries scheduled for repair of his left arm injury. The panel finds that the suspension of his benefits was appropriate at the time. However, the panel finds that the suspension should continue until June 10, 2013, the date upon which the worker met with his family physician and requested that the surgery be rescheduled.
The panel notes that the worker's wage loss benefits were suspended but that the worker continues to suffer the effects of a workplace injury and has not been able to work. He has not been found by the WCB to have recovered from the injurious effects of his injury.
While the panel finds that the worker's conduct resulted in the cancellation of two surgeries scheduled for repair of his left arm injury, it notes there were several mitigating factors. The panel found that the worker, who lives in a remote northern community, is not a sophisticated user of the health care system. This is his first surgery and he is not familiar with the protocols surrounding preparation. He noted that only a portion of the instructions were highlighted and felt that he had complied with those portions. He unwisely accepted advice from others, rather than contact the clinic or his case manager regarding the necessary preparation procedures. He is diabetic and followed his normal practice of eating when he felt light headed.
In dealing with this appeal, the panel sought information from the worker's treating physician. The panel notes that in a letter dated February 20, 2014 the physician advised that:
"…On June 10, he advised he still had not heard about the surgery and I left a message with the secretary about rescheduling or if they could advise if anyone else could perform the surgery. We were advised that they would not follow with him as he had missed two scheduled surgeries due to not being prepared appropriately: they did not know who else I could refer him to…He was seen again on January 22, 2014; I sent a letter to [Dr.'s name], orthopaedics, at [clinic]. I have not been advised of a pending appointment. I have sent another letter to [Dr.'s name], in plastic surgery. As [worker] continues to complain about the pain to the elbow, I believe he does need surgery. However, I think he needs explicit instructions on preparation prior to a surgery." (highlighting added)
The panel finds that wage loss benefits should be reinstated effective June 10, 2013, the date that the worker spoke with his physician and she attempted to obtain a new date for the surgery.
The panel recommends that the WCB provide more direct assistance to the worker to assist with his preparation for surgery. This might include bringing the worker in to town prior to the surgery and reviewing the preparation requirements with the worker or providing such other supports as might be appropriate.
The worker's appeal is allowed in part.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 7th day of March, 2014